Citation Nr: 0843429
Decision Date: 12/17/08 Archive Date: 12/23/08
DOCKET NO. 06-01 636 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for residuals of a
motorcycle accident, to include left ankle, left hip, left
shoulder, and back injuries.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
David S. Ames, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 2001 to August
2004.
This matter comes properly before the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Department of Veterans Affairs (VA) Regional Office and
Insurance Center in Philadelphia, Pennsylvania. The
veteran's claims file comes from the VA Regional Office in
Cleveland, Ohio (RO).
FINDING OF FACT
The evidence of record shows that the veteran's residuals of
a motorcycle accident, to include left ankle, left hip, left
shoulder, and back injuries, were incurred as a direct result
of an act of willful misconduct.
CONCLUSION OF LAW
Service connection for residuals of a motorcycle accident, to
include left ankle, left hip, left shoulder, and back
injuries, is not warranted. 38 U.S.C.A. §§ 1110, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2008). Prior to initial adjudication, a letter dated
in November 2004 satisfied the duty to notify provisions. An
additional letter was also provided to the veteran in March
2006. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20
Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006). The veteran's service medical
records and VA medical treatment records have been obtained.
A medical examination was provided to the veteran in
connection with his claim. There is no indication in the
record that additional evidence relevant to the issue decided
herein is available and not part of the claims file. As
there is no indication that any failure on the part of VA to
provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 20 Vet. App.
537 (2006); see also Dingess/Hartman, 19 Vet. App. 473.
Further, the purpose behind the notice requirement has been
satisfied because the veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claim, to include the opportunity to present pertinent
evidence.
Generally, service connection may be granted for a disability
resulting from disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303(a). In addition, service connection may be granted for
any disease diagnosed after discharge, when all the evidence
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for the claimed
disorders, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). The determination as to whether these requirements
are met is based on an analysis of all the evidence of record
and the evaluation of its credibility and probative value.
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
No compensation shall be paid if the disability resulting
from injury or disease in service is a result of the
veteran's own willful misconduct or abuse of alcohol or
drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002). Direct service
connection may be granted only when a disability or cause of
death was incurred or aggravated in line of duty, and not the
result of the veteran's own willful misconduct. 38 C.F.R.
§ 3.301.
"Willful misconduct" means an act involving conscious
wrongdoing or known prohibited action. An action will be
willful misconduct if it involves deliberate or intentional
wrongdoing with knowledge of or wanton and reckless disregard
of its probable consequences. However, a mere technical
violation of police regulations or ordinances will not per se
constitute willful misconduct. Willful misconduct will not
be determinative unless it is the proximate cause of injury,
disease or death. 38 C.F.R. § 3.1(n). A service department
finding that injury, disease or death was not due to
misconduct will be binding on VA unless it is patently
inconsistent with the facts and the requirements of laws
administered by VA.
The veteran's service medical records show that in November
2002, the veteran was injured in a motorcycle accident. The
residuals of this accident eventually resulted in the
veteran's discharge from military service. After separation
from military service, a March 2005 general medical
examination stated that, after physical examination, the
diagnoses were a left ankle disorder, left shoulder disorder,
left hip disorder, and low back disorder. The examiner
opined that the veteran's left ankle, left hip, and left
shoulder disorders were caused by the November 2002 accident
and that the low back disorder was caused by the left ankle
disorder.
A November 2002 police accident report stated that the
veteran's vehicle "was changing lanes when front handle bars
started shimmering, causing driver to l[o]se control of bike
running off road right." The report stated that the driver
was charged with failing to have a Class M endorsement.
A December 2003 line of duty determination stated that the
veteran was not under the influence of alcohol or drug and
was mentally responsible. The reported stated that "while
attempting to pass a vehicle, he lost control of his
motorcycle and slid on road, into curb."
A February 2004 service report stated that the veteran was
present for duty at the time of the accident. The reported
stated that
[b]etween the period of 1 Oct[ober]
thr[ough] 22 Oct[ober 20]02, [the
veteran] was specifically ordered not to
operate a motorcycle until he received
the . . . directed briefing from the unit
commander, and the motorcycle safety
course. He was specifically ordered by
no less than [a 2nd Lieutenant, a Master
Sergeant,] and his supervisor. On 8
Nov[ember 20]02, [the veteran] disobeyed
his superiors['] orders and operated a
motorcycle he intended to purchase. To
compound matters, [the veteran] did not
possess [e]ither insurance [o]r a license
to operate a motorcycle. The member
negligently operated the motorcycle and
was involved in a major accident which
nearly severed his [left] leg. . . .
My investigation clearly indicates that
[the veteran] violated a legal and lawful
order of several members of his chain of
command and negligently operated the
motor vehicle causing severe and likely
permanent disability.
The reported stated that the proximate causes of the
veteran's injury were both intentional misconduct, by
disobeying a direct order, and willful neglect, by operating
the vehicle without proper training. A formal investigation
was recommended.
A formal investigation was conducted in February 2004 to
determine whether the veteran's injuries were incurred in the
line of duty and whether they were the result of his own
willful misconduct. The report summarized the events of the
accident and stated that the veteran was traveling at 5 miles
per hour over the speed limit and had not completed the
mandatory requirements to operate a motorcycle on Virginia
roads, according to the Code of Virginia. The veteran had an
Ohio driver's license, but also did not have a motorcycle
endorsement in Ohio. He had not completed the United States
Air Force mandatory Motorcycle Safety Course. The veteran
also did not possess any motorcycle insurance at the time of
the accident. The report stated that the veteran's injuries
were not in the line of duty because they were caused by his
own misconduct.
The preponderance of the evidence shows
[the veteran's] injury stemmed from his
own conduct. His voluntary action of
riding the motorcycle, under order from
his superiors not to ride the motorcycle,
was a violation of the [Uniform Code of
Military Justice] . . . and is referenced
as misconduct for [line of duty]
purposes.
Additionally, his failure to obtain a
motorcycle license, his failure to
complete a motorcycle safety course . . .
and ride the motorcycle without insurance
were all compounding circumstances that
contributed to his loss of control of his
motorcycle.
In the investigating officer['s] (IO)
opinion, a combination of [the veteran's]
exceeding the maximum posted safe speed
limit . . . and due to his inadequate
riding experience . . . he lost control
of his motorcycle. In the IO[']s
opinion, he used his rear break too hard
causing the rear of the bike to swing
side to side and forward and skid
directly causing the motorcycle's
handlebars to shake. Thus, having
limited motorcycle experience, [the
veteran] was unable to recover from a
side-ways skid that started prior to his
application of brakes . . . Also, [the
veteran] stated under oath . . . that he
was not wearing any protective boots . .
. He wore slip-on running shoes that did
not cover either ankle . . .
[I]n my opinion, a preponderance of the
evidence showed that a misconduct was
involved, stemming from his reckless
conduct. [The veteran's] injury was
received due to his conscious decision to
ride a motorcycle without obtaining a
license, safety training course or regard
to his personal safety and in direct
contrast of his supervisor's orders.
[His] misconduct proximately caused his
injury to his [left] leg and [left] ankle
resulting in numerous corrective
surgeries.
The report concluded that the veteran's injuries were not
incurred in the line of duty and were due to misconduct.
An April 2004 Line of Duty Determination Legal Review stated
that
[t]he IO's conclusion of Misconduct is
supported by the evidence of willfully
operating his motorcycle despite lack of
required training, specifically mandated
to prevent these types of accidents.
Therefore, his actions can clearly be
construed as acts which evidence reckless
or wanton disregard for the attendant
consequences. As such, it falls within
the definition of intentional conduct
which evidences willful neglect. . . .
This conduct constituted misconduct.
Therefore, [the veteran's] injuries
occurred Not in the Line of Duty - Due to
Own Misconduct.
A May 2005 VA administrative decision found that the
veteran's disabilities "were not incurred in the line of
duty and were due to his willful misconduct in operating a
vehicle in an unsafe fashion and disobeying his
supervisor[']s orders."
The medical evidence of record shows that the veteran
received multiple injuries as the result of a motorcycle
accident in November 2002, at which time he was in active
military service. Furthermore, the medical evidence of
record shows that the veteran has multiple permanent
disabilities as a result of these injuries and that the
disabilities have been medically linked to the in-service
accident on both a direct and secondary basis. As such, the
Board finds that the veteran incurred residuals of a
motorcycle accident, to include left ankle, left hip, left
shoulder, and back injuries, during active military service.
However, the evidence of record also shows that the veteran's
residuals of a motorcycle accident were the direct result of
willful misconduct. The evidence clearly shows, and the
veteran does not contest, that he disobeyed direct orders
from 3 superior officers by riding the motorcycle, did not
take the mandatory military training courses before riding
the motorcycle, did not have a valid license to drive a
motorcycle, did not have motorcycle insurance, was speeding,
and was not wearing protective gear. The veteran's actions
thus constituted "willful misconduct" for VA purposes. See
38 C.F.R. § 3.1(n). Accordingly, the evidence of record
shows that the veteran's residuals of a motorcycle accident
were incurred as a direct result of an act of willful
misconduct. As such, service connection for residuals of a
motorcycle accident, to include left ankle, left hip, left
shoulder, and back injuries, is not warranted.
In reaching this decision, the Board considered the doctrine
of reasonable doubt. However, as the veteran's residuals of
a motorcycle accident were incurred as a direct result of
willful misconduct, the doctrine is not for application.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for residuals of a motorcycle accident, to
include left ankle, left hip, left shoulder, and back
injuries, is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs